Citation Nr: 1032855
Decision Date: 09/01/10 Archive Date: 09/13/10
DOCKET NO. 06-18 828 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for a psychiatric disorder.
2. Entitlement to service connection for sinusitis.
3. Entitlement to service connection for Hepatitis C.
4. Entitlement to service connection for a neck disorder.
5. Entitlement to service connection for a left shoulder
disorder.
6. Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The Veteran appellant had active service in the United States
Navy from September 1965 to March 1969, including two tours in
Vietnam. This case comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the above
Regional Office (RO) of the Department of Veterans Affairs (VA).
The Board notes that the appellant's VA medical records include
diagnoses of mood disorder, depression, substance abuse, and
personality disorder. The U.S. Court of Appeals for Veterans
Claims, in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per
curiam), a case in which various psychiatric diagnoses had been
rendered, pointed out that the Court's previous decision in
Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (which essentially
held that a lay claimant cannot competently provide medical
evidence) cuts both ways, so that a lay claimant cannot be held
to a narrowly claimed diagnosis - one he is incompetent to render
when determining what his actual claim may be. The Court found
that VA should have considered alternative current conditions
within the scope of the filed claim, and that diagnoses which
arise from the same symptoms for which the claimant was seeking
benefits do not relate to entirely separate claims not yet filed.
Rather, such diagnoses should have been considered to determine
the nature of the claimant's current condition relative to the
claim he did submit. Thus, this appellant's claim for
psychiatric disability should not be strictly limited to
depression, and other relevant psychiatric diagnoses should be
considered on remand.
The appellant initially requested a Board hearing at the RO in
his March 2007 VA Form 9. However, prior to the hearing being
scheduled, in a written statement submitted in May 2007, he
withdrew his request for hearing.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant
when further action is required.
REMAND
A determination has been made that additional evidentiary
development is necessary. Accordingly, further appellate
consideration will be deferred; this case is remanded to the
AMC/RO for action as described below.
Review of the appellant's service medical records reveals that he
reported ear, nose, and throat problems on his July 1965 report
of medical history. He also reported experiencing hay fever.
The associated report of medical examination included a notation
of "mild seasonal atopy". His post-service private medical
records, dated in 1998 and 2002, include diagnoses of acute
sinusitis and allergic rhinitis. His VA treatment records, dated
in March 2007, include a diagnosis of allergic rhinitis.
A veteran is presumed in sound condition except for defects noted
when examined and accepted for service. Clear and unmistakable
evidence that the disability existed prior to service and was not
aggravated by service will rebut the presumption of soundness.
38 U.S.C.A. § 1111. A pre-existing disease will be considered to
have been aggravated by active service where there is an increase
in disability during service, unless there is a specific finding
that the increase in disability is due to the natural progression
of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
In VAOGCPREC 3-2003, the VA General Counsel determined that the
presumption of soundness is rebutted only where clear and
unmistakable evidence shows that the condition existed prior to
service and that it was not aggravated by service. The General
Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the
burden of showing the absence of aggravation in order to rebut
the presumption of sound condition. See also Wagner v. Principi,
370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet.
App. 116, 123-30 (2003).
Aggravation may not be conceded where the disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during, and subsequent to service.
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8
Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups
of a pre-existing injury or disease are not sufficient to be
considered "aggravation in service" unless the underlying
condition, as contrasted with symptoms, has worsened. Hunt v.
Derwinski, 1 Vet. App. 292, 297 (1991).
In this case, the RO has not determined whether there is clear
and unmistakable evidence that an allergic disorder or a sinus
disorder pre-existed the appellant's entry into active military
service in September 1965. The RO also has not determined
whether, if any such condition did pre-exist service, there is
clear and unmistakable evidence that the pre-existing disorder
was not aggravated to a permanent degree in service beyond that
which would be due to the natural progression of the condition.
The RO has not obtained a medical opinion addressing these
questions. The duty to assist also requires medical examination
when such examination is necessary to make a decision on the
claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the
appellant has not been advised as to the evidentiary burden
placed upon him in a case in which the presumption of soundness
has been rebutted. Readjudication on remand should reflect
consideration of this theory, as well as all other applicable
theories.
In the appellant's VA Form 21-527, submitted in March 2008, he
stated that he had applied for Social Security Administration
(SSA) benefits in July 2003. An August 2003 VA treatment note
also reflects that the appellant was seeking SSA benefits. The
appellant has indicated that he was seeking SSA benefits based on
depression and his neck, shoulder and back problems. No SSA
records are in the claims file.
The appellant underwent a VA Agent Orange examination in October
2003. The examiner noted that he had been diagnosed with
Hepatitis C in January 2000, and that he had been treated by VA
for this condition. The report of the April 2005 VA liver
examination indicates that his Hepatitis C virus (HCV) infection
had been diagnosed at a VA hospital in 1999. But no VA records
dated prior to 2003 have been associated with the claims file.
In addition, the appellant reported having sustained a separation
of his left shoulder in 1983, and he reported being in multiple
motor vehicle (truck) accidents. No associated records are in
the claims file.
VA is, therefore, on notice of records that may be probative to
the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA
has a responsibility to obtain records generated by Federal
government entities that may have an impact on the adjudication
of a claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir.
2010); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, in order to
fulfill the duty to assist, all of the appellant's SSA and VA
medical records, as well as all pertinent private records, should
be obtained and associated with the claims file.
The appellant is currently service-connected for tinnitus,
hearing loss, diabetes mellitus, hypertension, and erectile
dysfunction (ED). Review of his VA treatment records reveals
that he had worries and anxieties related to his health
situation. When a veteran is found not to be entitled to a
regulatory presumption of service connection for a given
disability, the claim must nevertheless be reviewed to determine
whether service connection can be established on a another basis.
See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).
In this case, there is no indication that the RO considered any
application of the theory of secondary service connection, under
38 C.F.R. § 3.310, to the question of whether any of the
appellant's current psychiatric pathology is causally or
etiologically related to any service-connected disability.
Further development of the medical evidence relating to secondary
service connection is necessary, and adjudication on this basis
is therefore indicated.
In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found
that the Board may not rely on its own lay opinion when provided
with a medical opinion which does not clearly address the
relevant facts and medical science. The appellant was afforded a
VA liver examination in April 2005, and the examiner rendered a
negative opinion as to the etiology and onset of his HCV
infection. However, the examiner never explained the clinical
significance of the genotype of 1b for the appellant's HCV
infection, or how that genotype might reflect the origin and
onset date of the infection. On remand, such an opinion should
be obtained.
These considerations require further investigation by medical
professionals, inasmuch as the Board is prohibited from invoking
its own unsubstantiated medical opinions. See Colvin v.
Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to
assist includes obtaining medical records and examinations where
indicated by the facts and circumstances of an individual case.
See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has
stated that the Board's task is to make findings based on
evidence of record - not to supply missing facts. Beaty v.
Brown, 6 Vet. App. 532 (1994). Thus, where the record before the
Board is inadequate to render a fully informed decision, a remand
to the RO is required in order to fulfill its statutory duty to
assist the appellant to develop the facts pertinent to the claims
on appeal. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).
Therefore, to ensure full compliance with due process
requirements and the development of all potentially relevant
evidence as to all issues on appeal, this case is REMANDED to the
AMC/RO for the following:
1. Assure that all notification and development
action required by 38 U.S.C.A. §§ 5102, 5103, and
5103A, the implementing regulations found at
38 C.F.R. § 3.159, and any other applicable legal
precedent has been completed.
2. Contact the appellant to obtain the names and
addresses of all VA, private, or other government
health care providers and treatment centers where
he has been treated for any claimed condition
since 1969. After securing the necessary
release(s), obtain those records that have not
been previously secured. In particular, obtain
the records from the appellant's 1999-2000 VA
diagnosis and treatment of HCV infection, as well
as the reports from all liver biopsies and HCV
genotyping.
3. Contact the Social Security Administration to
obtain all the medical records associated with
the Veteran's initial application for benefits,
as well as any SSA Administrative Law Judge (ALJ)
decision along with the associated List of
Exhibits, as well as copies of all of the medical
records upon which any further decision
concerning the appellant's entitlement to
disability benefits was based. Associate those
records with the claims file.
4. To the extent there is an attempt to obtain
any of these records that is unsuccessful, the
claims file should contain documentation of the
attempts made. The appellant and his
representative should also be informed of the
negative results and be given opportunity to
secure the records.
5. After completing any additional notification
and/or development action deemed warranted by the
record, schedule the appellant for a VA
psychiatric evaluation to determine the nature,
onset date and etiology of any current
psychiatric or psychological pathology. The
examiner is to determine whether any such current
psychiatric pathology is linked to the
appellant's active service, as well as whether
any portion of the appellant's current
psychiatric pathology is related to a service-
connected disability. The claims file must be
made available to the examiner for review in
connection with the examination. All necessary
special studies or tests, including psychological
testing and evaluation such as the Minnesota
Multiphasic Personality Inventory (MMPI), are to
be accomplished if deemed necessary. An opinion
in response to the questions below should be
obtained even if the appellant does not
report for the examination.
The examiner, after examination of the appellant
and review of his entire medical history, to
include in-service and post-service medical
reports, should provide an opinion as to the
diagnosis and etiology of any psychiatric
disorder found. The examiner should also
reconcile all psychiatric diagnoses documented in
the appellant's records and provide a current
psychiatric diagnosis. The psychiatrist should
also offer an opinion as to the onset date of the
appellant's psychiatric condition(s), if any. If
the examiner finds that a psychiatric disorder is
etiologically related to service, to the extent
possible, the psychiatrist should indicate the
historical degree of impairment due any
psychiatric disorder found to be related to
service, as opposed to that due to other causes,
if any, such as other psychiatric disorders,
personality defects, substance abuse, and/or non-
service-connected physical disabilities.
In particular, the examiner should offer an
opinion, with degree of medical probability
expressed, as to whether the etiology of the
appellant's psychiatric disorder(s) is (are)
attributable to, or related to, any disease or
incident suffered during his active service, any
disease or incident suffered prior to service,
any disease or incident suffered after service,
or to a combination of such causes or to some
other cause or causes.
The examiner should identify all mental disorders
which have been present, and distinguish
conditions which are acquired from conditions
which are of developmental or congenital origin,
if any. The opinion should reflect review of
pertinent material in the claims file. The
psychiatrist should integrate the previous
psychiatric findings and diagnoses with current
findings to obtain a true picture of the nature
of the Veteran's psychiatric status. If there
are different psychiatric disorders, the examiner
should reconcile the diagnoses and should specify
which symptoms are associated with each of the
disorders.
Specifically, the examiner must address the
questions of:
a. Whether the appellant's current
psychiatric pathology is causally or
etiologically related to his period of
military service or to some other cause or
causes. (It is not necessary that the exact
causes - other than apparent relationship to
some incident of service - be delineated.);
b. Whether the appellant's current
psychiatric pathology is related to symptoms
or signs he may have had in service
(September 1965 to March 1969);
c. Whether the appellant's current
psychiatric pathology is related to symptoms
and signs that may have occurred within one
year after his service separation in March
1969; and
d. Whether any portion of the appellant's
current psychiatric pathology is related to
any service-connected disability (tinnitus,
hearing loss, diabetes, hypertension and
ED), including by way of aggravation.
In assessing the relative likelihood as to origin
and etiology of the conditions specified above,
the examiner should apply the standard of whether
it is at least as likely as not (i.e., to at
least a 50-50 degree of probability) that the
claimed disorder is causally or etiologically
related to the Veteran's active service, or
whether such a causal or etiological relationship
is unlikely (i.e., less than a 50 percent
probability), with the rationale for any such
conclusion set out in the report.
Note: As used above, the term "at least as
likely as not" does not mean merely within the
realm of medical possibility, but rather that the
weight of medical evidence both for and against a
conclusion is so evenly divided that it is as
medically sound to find in favor of causation as
it is to find against it.
Note: The term "aggravation" in the above
context refers to a permanent worsening of the
underlying condition, as contrasted to temporary
or intermittent flare-ups of symptomatology which
resolve with return to the baseline level of
disability.
If any opinion and supporting rationale cannot be
provided without invoking processes relating to
guesses or judgment based upon mere conjecture,
the physician should clearly and specifically so
specify in the report, and explain why this is
so. In this regard, if the physician concludes
that there is insufficient information to provide
an etiologic opinion without result to mere
speculation, the physician should state whether
the inability to provide a definitive opinion was
due to a need for further information (with said
needed information identified) or because the
limits of medical knowledge had been exhausted
regarding the etiology of the appellant's
psychiatric pathology. See Jones v. Shinseki, 23
Vet. App. 382 (2010).
6. After the above development is completed,
arrange for the review of the appellant's claims
file by an otolaryngologist in order to determine
whether any current allergic rhinitis or sinus
disorder is attributable to the Veteran's
military service.
a. After reviewing the evidence of record,
the reviewer should offer opinions as to
whether the appellant's allergic rhinitis
and/or sinus disorder pre-existed his entrance
into active duty in September 1965; and if so,
whether it is at least as likely as not that
each pre-existing disorder was aggravated
(increased in severity beyond the normal
progression) by any incident of service.
b. The otolaryngologist should respond to the
following specific questions and provide a
full statement of the basis for the
conclusions reached:
i. On the basis of the clinical record and
the known development characteristics of
the diagnosed allergic rhinitis and/or
sinus disorder, can it be concluded that
any such currently diagnosed condition
existed at the time of appellant's entrance
onto active duty in September 1965? The
reviewer should discuss the July 1965
notations of mild seasonal atopy.
ii. When is the first documented record of
the existence of allergic rhinitis for the
appellant? When is the first documented
record of the existence of a sinus disorder
for the appellant? The reviewer should
discuss the appellant's July 1965 report of
experiencing hay fever.
iii. Is the appellant's currently claimed
sinus condition etiologically related to
any incident of service, including exposure
to dust, or is the claimed pathology more
likely due to some other cause or causes?
iv. Is any portion of the appellant's
current allergic rhinitis and/or sinus
disorder caused by some aggravation of the
pre-existing seasonal atopy, if any?
c. In assessing the relative likelihood as to
origin and etiology of the conditions
specified above, the reviewer should apply the
standard of whether it is at least as likely
as not (i.e., to at least a 50-50 degree of
probability) that the claimed disorder is
causally or etiologically related to any
period of the appellant's service, or whether
such a causal or etiological relationship is
unlikely (i.e., less than a 50 percent
probability), with the rationale for any such
conclusion set out in the report.
d. Note: The term "aggravation" in the
above context refers to a permanent worsening
of the underlying condition, as contrasted to
temporary or intermittent flare-ups of
symptomatology which resolve with return to
the baseline level of disability.
e. Note: As used above, the term "at least
as likely as not" does not mean merely within
the realm of medical possibility, but rather
that the weight of medical evidence both for
and against a conclusion is so evenly divided
that it is as medically sound to find in favor
of causation as it is to find against it.
f. If any opinion and supporting rationale
cannot be provided without invoking processes
relating to guesses or judgment based upon
mere conjecture, the physician should clearly
and specifically so specify in the report, and
explain why this is so. In this regard, if
the physician concludes that there is
insufficient information to provide an
etiologic opinion without result to mere
speculation, the physician should state
whether the inability to provide a definitive
opinion was due to a need for further
information (with said needed information
identified) or because the limits of medical
knowledge had been exhausted regarding the
etiology of the appellant's claimed sinus
pathology. See Jones v. Shinseki, 23 Vet.
App. 382 (2010).
g. If the otolaryngologist determines that an
examination is needed before the requested
opinions can be rendered, the AMC/RO should
schedule the appellant for such an
examination.
7. After completing any additional notification
and/or development action deemed warranted by the
record, arrange for review of the Veteran's
claims file by an appropriately qualified
physician, such as an orthopedist.
a. The purpose of the review is to determine
the nature, onset date, and etiology of any
current cervical spine, left shoulder and
lumbar spine pathology and specifically to
determine whether current pathology is linked
to the appellant's service.
b. After reviewing the evidence of record,
the reviewer should offer opinions as to
whether the appellant's current neck, left
shoulder and low back disorders are related to
his active military service. The reviewer
should respond to the following specific
questions and provide a full statement of the
basis for the conclusions reached:
i. The reviewer should list and discuss all
documented neck, left shoulder, and low back
injuries. The reviewer should also discuss
what diffuse idiopathic skeletal
hyperostosis (DISH) is and whether or not
the appellant has this condition.
ii. On the basis of the clinical record and
the known development characteristics of the
diagnosed neck, left shoulder and low back
disorders, can it be concluded that any such
currently diagnosed pathology existed at the
time of appellant's separation from service
in March 1969? The reviewer should discuss
imaging results from 1969 to the present, as
well as the appellant's description of his
in-service injuries.
iii. When is the first documented record of
the existence of a neck injury for the
appellant? When is the first documented
record of the existence of a left shoulder
injury for the appellant? When is the first
documented record of the existence of a low
back injury for the appellant?
iv. Is the appellant's currently claimed
neck disorder etiologically related to any
incident of service, or is the claimed
cervical pathology more likely due to some
other cause or causes?
v. Is the appellant's currently claimed
left shoulder disorder etiologically related
to any incident of service, or is the
claimed pathology more likely due to some
other cause or causes?
vi. Is the appellant's currently claimed
low back disorder etiologically related to
any incident of service, or is the claimed
pathology more likely due to some other
cause or causes?
c. In assessing the relative likelihood as to
origin and etiology of the conditions
specified above, the reviewer should apply the
standard of whether it is at least as likely
as not (i.e., to at least a 50-50 degree of
probability) that the claimed disorder is
causally or etiologically related to the
appellant's active service, or whether such a
causal or etiological relationship is unlikely
(i.e., less than a 50 percent probability),
with the rationale for any such conclusion set
out in the report.
e. Note: As used above, the term "at least
as likely as not" does not mean merely within
the realm of medical possibility, but rather
that the weight of medical evidence both for
and against a conclusion is so evenly divided
that it is as medically sound to find in favor
of causation as it is to find against it.
d. Note: The term "aggravation" in the
above context refers to a permanent worsening
of the underlying condition, as contrasted to
temporary or intermittent flare-ups of
symptomatology which resolve with return to
the baseline level of disability.
f. If any opinion and supporting rationale
cannot be provided without invoking processes
relating to guesses or judgment based upon
mere conjecture, the physician should clearly
and specifically so specify in the report, and
explain why this is so. In this regard, if
the physician concludes that there is
insufficient information to provide an
etiologic opinion without result to mere
speculation, the physician should state
whether the inability to provide a definitive
opinion was due to a need for further
information (with said needed information
identified) or because the limits of medical
knowledge had been exhausted regarding the
etiology of the appellant's claimed orthopedic
pathology. See Jones v. Shinseki, 23 Vet.
App. 382 (2010).
g. If the reviewer determines that an
examination is needed before the requested
opinions can be rendered, the AMC/RO should
schedule the appellant for such an
examination.
8. Thereafter, arrange for the appellant's
records to be reviewed by a physician with
expertise in infectious diseases. The reviewer
should be provided with the appellant's claims
file, including any records obtained pursuant to
the above development, to include a copy of this
remand. The reviewer should render an opinion as
to the etiology and onset date of the appellant's
HCV infection.
The reviewer must list and discuss all documented
risk factors for the appellant; the reviewer
should rank order the documented risk factors
relative to the probability that any current
confirmed HCV infection is etiologically related
to the risk factor. In particular, the reviewer
should address the appellant's pre-service
tattoos, his service activities in Vietnam, his
post-service alcohol and substance abuse, his
medical and dental history and his social/sexual
history. The review should also address the
significance of the 1b genotype of the
appellant's HCV infection vis-à-vis the source of
the infection and the onset date of the
infection, with citation to the literature as
needed.
Specifically, the reviewer is requested to
provide an opinion as to whether any currently
documented HCV infection is related to the
appellant's period of military service from
September 1965 to March 1969. The basis of the
opinion should be included in the document
containing the opinion.
If a physical examination or additional history
is needed before an opinion can be rendered, the
AMC/RO should arrange for said examination to
occur.
If any opinion and supporting rationale cannot be
provided without invoking processes relating to
guesses or judgment based upon mere conjecture,
the physician should clearly and specifically so
specify in the report, and explain why this is
so. In this regard, if the physician concludes
that there is insufficient information to provide
an etiologic opinion without result to mere
speculation, the physician should state whether
the inability to provide a definitive opinion was
due to a need for further information (with said
needed information identified) or because the
limits of medical knowledge had been exhausted
regarding the etiology of the appellant's HCV
infection. See Jones v. Shinseki, 23 Vet. App.
382 (2010).
9. After completing any additional notification
and/or development action deemed warranted by the
record, the AMC/RO should again review the
record, including any newly acquired evidence,
and re-adjudicate the issues on appeal. The
AMC/RO should ensure that direct, presumptive,
aggravation, and secondary theories of service
connection are considered.
10. If any benefit sought on appeal remains
denied, the appellant and his representative must
be provided a Supplemental Statement of the Case
(SSOC). The SSOC should contain notice of all
relevant actions taken on the claims for
benefits, to include a summary of the evidence
and applicable law and regulations considered
pertinent to the issues currently on appeal. An
appropriate period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
The appellant is hereby notified that it is the appellant's
responsibility to report for any scheduled examination and to
cooperate in the development of the case, and that the
consequences of failure to report for a VA examination without
good cause may include denial of the claim. 38 C.F.R. §§ 3.158
and 3.655.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate outcome
of this case. The appellant need take no action unless otherwise
notified.
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of
the Board of Veterans' Appeals is appealable to the U.S. Court of
Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a final decision of the
Board on the merits of the appeal. 38 C.F.R. § 20.1100(b)
(2009).